Appeal from the Circuit Court of Macon County; the Hon. Rodney
A. Scott, Judge, presiding.
JUSTICE WEBBER DELIVERED THE OPINION OF THE COURT:
Defendant was charged, tried, and convicted by a jury in the circuit court of Macon County of the offenses of rape and robbery in violation of sections 11-1 and 18-1 of the Criminal Code of 1961 (Ill. Rev. Stat. 1981, ch. 38, pars. 11-1 and 18-1). He was sentenced to imprisonment, 30 years for rape and 5 years for robbery, these sentences to run concurrently to each other, but consecutively to sentences being served at that time by the defendant under convictions in California.
Since no questions are raised on appeal concerning the adequacy of the State's evidence nor the severity of the punishment, no extended recitation of the facts is necessary for the purposes of this opinion. The sole question raised in this court is the fact that defendant was compelled to appear at trial in shackles and jail uniform. However, the background of this question is important to an understanding of our decision.
Jury trial began on the morning of August 17, 1981, with jury selection. Defendant was present, unshackled and in street clothing, although he was in custody. Apparently the jury had not been selected by the time of the noon recess and defendant was returned to the jail for the midday meal. It also seems that he was shackled for traveling from the courtroom to the jail. Upon being returned by deputy sheriffs to the courtroom for the afternoon proceedings, defendant was outside the courtroom and out of the presence of the veniremen; the deputies were in the process of removing the shackles before entering the courtroom; when they were removed, defendant escaped from the deputies and fled from the courthouse. He was apprehended about one-half hour later, hiding in a trash dumpster about five blocks away. He was then returned to the courtroom wearing ankle and wrist shackles and a bright orange coverall with the legend "JAIL" stenciled across its back aspect. Defendant remained in such habiliments for the duration of the trial. Evidence of defendant's flight was presented to the jury.
Although in his appeal defendant contests only the appearance at trial in shackles and jail clothing, he also points out two other occasions of the same variety: at a suppression hearing and at the post-trial motion hearing. While not arguing error in these incidents, he argues that the trial court's remarks at those times indicate the court's misapprehension of the law.
Prior to resuming jury selection, the State, out of the presence of the venire, made the record on the defendant's flight. Defense counsel objected to bringing the defendant back to trial in shackles and jail uniform. The trial court overruled the objection, holding "that the restraint is necessary under these facts and circumstances." Voir dire was then resumed and at its conclusion with a jury having been selected, defense counsel moved for mistrial on the same grounds as before, the appearance of the defendant in shackles and jail uniform. The State argued that defendant was seated facing the jury and therefore they were unable to see the legend "JAIL" across the back of the coverall. The trial court indicated in its ruling that it would attempt to have the defendant brought in and taken out of the courtroom after the jury had been removed so they could not observe the shackles, since in the court's words they were "not readily visible to the jury panel so long as he's seated at counsel table." As to the uniform, the court stated that it was a "reasonable, necessary precaution." It then denied the motion for mistrial.
Since different considerations apply, we will consider the shackles and the uniform separately. We hold that the shackles were justified; that the uniform was not and was error but harmless error; and that defendant was prejudiced by neither.
The supreme court carefully delineated the factors to be involved in shackling a defendant at trial in People v. Boose (1977), 66 Ill.2d 261, 362 N.E.2d 303. It said:
"A defendant may be shackled when there is reason to believe that he may try to escape or that he may pose a threat to the safety of people in the courtroom or if it is necessary to maintain order during the trial. [Citations.] The determination is left to the discretion of the trial judge, and he may select the physical restraints most suitable in light of all the circumstances. [Citation.] The trial judge should state for the record his reasons for allowing the defendant to remain shackled, and he should give the defendant's attorney an opportunity to present reasons why the defendant should not be shackled. These proceedings should take place outside the presence of the jury. [Citations.]
Factors to be considered by the trial judge in making this determination may include:
`[T]he seriousness of the present charge against the defendant; defendant's temperament and character; his age and physical attributes; his past record; past escapes or attempted escapes, and evidence of a present plan to escape; threats to harm others or cause a disturbance; self-destructive tendencies; the risk of mob violence or of attempted revenge by others; the possibility of rescue by other offenders still at large; the size and mood of the audience; the nature and physical security of the courtroom; and the adequacy and availability of alternative remedies.' [Citations.]
A reviewing court examines whether the trial court abused its discretion in requiring the defendant to appear shackled before the jury. It is obvious that the record should clearly disclose the reason underlying the trial court's decision for the shackling and show that the accused's attorney was given an opportunity to oppose this decision. [Citations.]" 66 Ill.2d 261, 266-67, 362 N.E.2d 303, 305-06.
• 1 It will be seen that the experienced trial judge carefully followed the procedural dictates of Boose. After the record was made concerning defendant's escape during recess, defense counsel was permitted to object and state the basis for his objection. After the voir dire was completed, he was permitted to move for mistrial and state his reasons at greater length. Both proceedings were held out of the presence of the jury. The trial judge did omit to state his reasons, other than saying the precautions were "necessary." However, it is apparent that he was letting the record speak for itself. Unlike Boose, where no apparent reason for shackling was advanced other than the nature of the offense, here a successful escape was accomplished in the very midst of trial and thus is far beyond the "reason to believe" he might try to escape. In the instant case escape was not a theory, it was a fact.
Shackling under such circumstances has been approved in other jurisdictions. Clark v. State (1967), 280 Ala. 493, 195 So.2d 786, cert. denied (1967), 387 U.S. 571, 18 L.Ed.2d 967, 87 S.Ct. 2071; People v. ...